The Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 have significantly extended the protections for pregnant women and new mothers. These protections now cover not only the period of maternity leave but also the period of pregnancy and an additional 18 months following the birth or adoption of a child. This means that employees are protected from redundancy from the moment they notify their employer of their pregnancy until 18 months after the birth or adoption.
Key protections
Protected period of pregnancy: Begins from the date the employee notifies the employer of the pregnancy and ends on the day statutory maternity leave begins. If the employee is not eligible for statutory maternity leave, the protected period ends two weeks after childbirth or the end of the pregnancy.
Additional protected period: Extends for 18 months from the expected week of childbirth or the actual date of childbirth, provided the employer is notified of this date before the end of statutory maternity leave or as soon as reasonably practicable afterwards.
Practical steps for employers
Redundancy process adjustments
Employers must adapt their redundancy processes to comply with the new protections. Here are some practical steps:
Review notification dates: When commencing a redundancy process, employers need to check when they were notified of employees' pregnancies and when potentially affected employees returned from periods of family leave. Those who returned before 6 April 2024 will not benefit from the new protections.
Offer suitable alternative employment: If a redundancy situation arises, employers must offer suitable alternative employment to protected employees before offering it to others. This includes roles with more responsibilities, which may still be considered suitable.
Clear communication: Ensure that pregnant employees understand their rights and the benefits of notifying the employer of their pregnancy as soon as they feel comfortable. Emphasize confidentiality and the importance of early notification in the context of a redundancy process.
Training and support
Training for line managers: Line managers should receive training on holding sensitive conversations with employees involved in redundancy processes, particularly those who are pregnant or on maternity leave.
Legal advice: Given the complexity of distinguishing between redundancy and other substantial reasons for dismissal, seeking legal advice before making any decisions is crucial.
Case law insights
Ballerino v The Racecourse Association Limited
The case of Ballerino v The Racecourse Association Limited highlights the importance of a structured approach to redundancy. The Employment Appeal Tribunal (EAT) emphasized that employers must carefully consider whether a genuine redundancy situation exists and whether the employer's need for employees to carry out work of a particular kind has ceased or diminished. In this case, the claimant's duties were absorbed into a newly created full-time role, which was not initially offered as a suitable alternative vacancy. The EAT ruled that roles with more responsibilities could still be suitable alternatives and sent the case back to the employment tribunal for reconsideration.
Additional considerations
Future developments
Following the election of the Labour Government in July, further reforms to maternity protections are expected. Labour proposes to make it unlawful to dismiss a woman within six months of her return from maternity leave except in specific circumstances, such as gross misconduct. This proposal may make it more challenging to dismiss women for redundancy following their return from maternity leave.
Compliance and best practices
Policy updates: Employers should update their policies to reflect the new protections and ensure that all staff are aware of these changes.
Record-keeping: Maintain robust records to identify employees entitled to additional protection and ensure they are offered suitable alternatives during redundancy processes.
Supportive culture: Develop a culture that supports new parents in returning to work, including flexible working policies and practices that address the real needs of working parents.
By taking these steps, employers can navigate the complexities of redundancy processes while ensuring compliance with the extended maternity protections.
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